under their three several classes, of persons professing the popish religion, popish recusants convict, and popish priests. Of which the President Montesquieu observes,d that they are so rigorous, though not professedly of the sanguinary kind, that they do all the hurt that can possibly be done in cold blood. But in answer to this it may be observed (what foreigners who only judge from our statute-book are not fully apprised of), that these laws are seldom exerted to their utmost rigor; and, indeed, if they were, it would be very difficult to excuse them. For they are rather to be accounted for from their history, and the urgency of the times which produced them, than to be approved (upon a cool review) as a standing system of law. The restless machinations of the Jesuits during the reign of Elizabeth, the turbulence and uneasiness of the papists under the new religious establishment, and the boldness of their hopes and wishes for the succession of the Queen of Scots, obliged the Parliament to counteract so dangerous a spirit by laws of a great, and then, perhaps, necessary severity. The powder treason, in the succeeding reign, struck a panic into James I., which operated in different ways; it occasioned the enacting of new laws against the papists, but deterred him from putting them in execution. The intrigues of Queen Henrietta in the reign of Charles I., the prospect of a popish successor in that of Charles II., the assassination plot in the reign of King William, and the avowed claim of a popish pretender to the crown [58] in that and subsequent reigns, will account for the extension of these penalties at those several periods of our history. But if a time should ever arrive, and perhaps it is not very distant, when all fears of a pretender shall have vanished, and the power and influence of the pope shall become feeble, ridiculous, and despicable, not only in England, but in every kingdom of Europe, it probably would not then be amiss to review and soften these rigorous edicts, at least till the civil principles of the Roman Catholics called again upon the legislature to renew them; for it ought not to be left in the breast of every merciless bigot to drag down the vengeance of these occasional laws upon inoffensive, though mistaken subjects, in opposition to the lenient inclinations of the civil magistrate, and to the destruction of every principle of toleration and religious liberty. This hath partly been done by statute 11 Geo. III., c. 60, with regard to such papists as duly take the oath therein prescribed, of allegiance to his majesty, abjuration of the pretender, renunciation of the pope's civil power, and abhorrence of the doctrines of destroying and not keeping faith with heretics, and deposing or murdering princes excommunicated by authority of the See of Rome; in respect of whom, only the statute of 11 & 12 Will. III. is repealed, so far as it disables them from purchasing or inheriting, or authorizes the apprehending d Sp. L., b. 19, c. 27. But no Roman Catholic minister shall officiate in any place of worship having a steeple and a bell, or at any funeral in a church or church-yard, or shall wear the habits of his order, except in a place allowed by this statute, or in a private house, where there shall not be more than five persons besides the family. Id., s. 11. This statute shall not exempt Roman Catholics from the payment of tithes, or other dues to the church; nor shall it affect the statutes concerning marriages, or any law respecting the succession to the crown. Id., s. 12. No person who has qualified shall be prosecuted for instructing youth, except in an endowed school, or a school in one of the English Universities; and except, also, that no Roman Catholic schoolmaster shall receive into his school the child of any Protestant father, id., s. 13, 14, 15; nor shall any Roman Catholic keep a school until his or her name be recorded as a teacher at the sessions. Id., s. 16. [However, by a more recent statute, 2 & 3 Will. IV., c. 115, s. 1, Roman Catholics are made subject to the same laws as Protestant dissenters with respect to schools and places of worship.] or prosecuting the popish clergy, or subjects to perpetual imprisonment either them or any teachers of youth.* (8) But by the statute 31 Geo. III., c. 32 (amended and explained by the 43 Geo. III., c. 30), all the severe and cruel restrictions and penalties enumerated by the learned judge are removed from those Roman Catholics who are willing to comply with the requisitions of that statute; which are, that they must appear at some of the courts of Westminster, or at the quarter sessions held for the county, city, or place where they shall reside, and shall make and subscribe a declaration, that they profess the Roman Catholic religion, and also an oath which is exactly similar to that required by the 11 Geo. III., c. 60, the substance of which is stated above in the text. On this declaration and oath being duly made by any Roman Catholic, the officer of the court shall grant him a certificate; and such officer shall yearly transmit to the privy council lists of all persons who have thus qualified themselves within the year in his respective court. The statute (sect. 4) then provides, that a Roman Catholic, thus qualified, shall not be prosecuted under any statute for not repairing to a parish church, nor shall he be prosecuted for being a papist, nor for attending or performing mass or other ceremonies of the Church of Rome; provided (by sect. 5) that no place shall be allowed for an assembly to celebrate such worship until it is certified to the sessions; nor shall any minister officiate in it until his name and description are recorded there. And (by sect. 6 of 31 Geo. III., c. 32) no such place of assembly shall have its doors locked or barred during the time of meeting or divine worship. If any Roman Catholic whatever is elected constable, church-warden, overseer, or into any parochial office, he may execute the same by a deputy, to be approved as if he were to act for himself as principal. Id., s. 7. But every minister who has qualified shall be exempt from serving upon juries, and from being elected into any parochial office. Id., s. 8. And all the laws for frequenting divine service on Sundays shall continue in force, except where persons attend some place of worship allowed by this statute, or the toleration act of the dissenters. 1 W. & M., s. 1, c. 18; id., s. 9. If any person disturb a congregation allowed under this act, he shall, as for disturbing a dissenting meeting, be bound over to the next sessions, and upon conviction there, shall forfeit twenty pounds. Sect. 10. But no religious order is to be established; and every endowment of a school or college by a Roman Catholic shall still be superstitious and unlawful. Id., s. 17. And no person henceforth shall be summoned to take the oath of supremacy, and the declaration against transubstantiation. Id., s. 18. Nor shall Roman Catholics who have qualified be removable from London and Westminster, id., s. 19; neither shall any peer who has qualified be punishable for coming into the presence or palace of the king or queen. Id., s. 20. And no papists whatever shall be any longer obliged to register their names and estates, or enroll their deeds and wills. Id., s. 21. And every Roman Catholic who has qualified may be permitted to act as a barrister, attorney, and notary. Id., s. 22. By the 43 Geo. III., c. 30, Roman Catholics, taking the oath, and making the declaration prescribed by 31 Geo. III., c. 32, shall be entitled to all the benefits given by 11 Geo. III., c. 60, as fully as if they had taken the oath therein prescribed.-[CHITTY.] And now, by the stat. 10 Geo. IV., c. 7, almost all the remaining civil disabilities are removed from persons professing the Roman Catholic religion. By the 5th section of that statute, they are empowered to vote at elections for mem Other regu lations to secure the Church. In order the better to secure the Established Church against perils from non-conformists of all denominations, infidels, Turks, Established Jews, heretics, papists, and sectaries, there are, however, two bulwarks erected, called the Corporation and Test Acts; by the former of which no person can be legally elected to any office relating to the government of any city or corporation, unless, within a twelvemonth before, he has received the sacrament of the Lord's Supper according to the rites of the Church of England; and he is also enjoined to take the oaths of allegiance and supremacy at the same time that he takes the oath of office; or, in default of either of these requisites, such election shall be void. The other, called the Test Act,f directs all officers, civil and military, to take the oaths and make the dec59]laration against transubstantiation, in any of the king's courts at Westminster, or at the Quarter Sessions, within six calendar months after their admission; and also within the same time to receive the sacrament of the Lord's Supper, according to the usage of the Church of England, in some public church immediately after divine service and sermon, and to deliver into court a certificate thereof signed by the minister and churchwarden, and also to prove the same by two credible witnesses; upon forfeiture of £500 and disability to hold the said office." And of much the same nature with these is the statute 7 Jac. Stat. 25 Car. II., c. 2, explained by 9 Geo. II., c. 26. Kingdom. They are subject, on coming into the realm, to banishment for life, id., s. 29; but any Protestant secretary of state may grant a license to any Jesuit to come into the United Kingdom, subject to its revocation at pleasure, and to his being ordered to depart, on neglect of which order he is equally subject to banishment. Id., s. 30. So, the becoming a Jesuit or member of any such religious order within any part of the United Kingdom, subjects the offender to banishment. Id., s. 34. And after having been sentenced to banishment for any offense under the act, the offender, on being found at large without lawful cause, after the end of three calendar months from the time of such sentence. is liable to be transported for life. Id., s. 36. These provisions are not to extend to any religious order consisting of females. Id., s. 37. e Stat. 13 Car. II., st. 2, c. 1. bers of Parliament, and to sit in both By subsequent sections of the same (11) But both these statutes are now repealed by the recent act of the 9 Geo. IV., c. 17; and in every session of Parliament, an act is passed to indemnify all persons who have not complied with the requisitions of any act of Parliament imposing any test for holding office, provided they qualify themselves within a time specified in the act. I., c. 2, which permits no persons to be naturalized or restored in blood, but such as undergo a like test; which test having been removed, in 1753, in favor of the Jews, was the next session of Parliament restored again with some precipitation. Thus much for offenses which strike at our national religion, or the doctrine and discipline of the Church of England in particular. I proceed now to consider some gross impieties and general immoralities, which are taken notice of and punished by our municipal law, frequently in concurrence with the ecclesiastical, to which the censure of many of them does also of right appertain, though with a view somewhat different; the spiritual court punishing all sinful enormities for the sake of reforming the private sinner, pro salute anima; while the temporal courts resent the public affront to religion and morality, on which all government must depend for support, and correct more for the sake of example than private amendment. IV. The fourth species of offenses, therefore, more immedi- IV. Blasphemy. ately against God and religion, is that of blasphemy against the Almighty, by denying his being or providence; or by contumelious reproaches of our Savior Christ." Whither also may be referred all profane scoffing at the Holy Scripture, or exposing it to contempt and ridicule. These are offenses punishable at common law by fine and imprisonment, or other infamous corporeal punishment ;g13* for Christianity is part of the laws of England.h1⁄4 1 Hawk., P. C., 7. (12) It is not lawful even to publish a correct account of the proceedings in a court of justice, if it contain matter of a scandalous, blasphemous, or indecent nature, 3 B. & Ald., 167; and a publication stating our Saviour to be an impostor, and a murderer in principle, and a fanatic, is a libel at common law. 1 B. & C., 26. The general law as to this offense, as collected from 2 Stra., 834; Fitzg., 64; Barn. R., 162, is, that it is illegal to write against Christianity in general; that it is also illegal to write against any one of its evidences or doctrines, so as to manifest a malicious design to undermine it altogether; but that it is not illegal to write, with decency, on controverted points, whereby it is possible some articles of belief may be affected.-[CHITTY.] (13) The statute of 9 & 10 Will. III., c. 32, before noticed, has not altered the common law as to the offense of blasphemy, but only given a cumulative punishment, 3 B. & Ald., 161; and it 1 Ventr., 293; 2 Strange, 834. seems that the 53 Geo. III., c. 160, before noticed, does not alter the common law, but only removes the penalties imposed by the 9 & 10 Will. III., c. 32, on persons denying the Trinity, and extends to them the benefits conferred on all other Protestant dissenters by 1 W. & M., c. 18, s. 1; 1 B. & C., 26. See Burn, Ecc. Law, 8 ed., vol. iii., tit. Profaneness, 215, n. 3. For a second offense the defendant may be fined or imprisoned, or banished for such a number of years as the court shall think fit; 60 Geo. III. & 1 Geo. IV., c. 8, s. 4; and by the same act, after conviction, all copies of the blasphemous work may be seized; but if judgment be arrested or reversed, they are to be restored.— [CHITTY.] The punishment of banishment imposed by this act is now reduced by the I Will. IV., c. 73, to find and imprisonment, and infamous corporeal punishment, at the discretion of the court. (14) See ante, 44, 50; 1 B. & C., 56. In New York, a conviction for blasphemy, on an indictment at common law, has been sustained, The People v. Ruggles, 8 Johns. R., 290. V. Swear. ing and cursing. V. Somewhat allied to this, though in an inferior degree, is the offense of profane and common swearing and cursing. By [60] the last statute against which, 19 Geo. II., c. 21, which repeals all former ones, every laborer, sailor, or soldier profanely cursing or swearing shall forfeit 1s.; every other person under the degree of a gentleman, 2s.; and every gentleman or person of superior rank, 5s. to the poor of the parish; and, on a second conviction, double; and for every subsequent offense, treble the sum first forfeited, with all charges of conviction; and, in default of payment, shall be sent to the house of correction for ten days. Any justice of the peace may convict upon his own hearing, or the testimony of one witness; and any constable or peace officer, upon his own hearing, may secure any offender and carry him before a justice, and there convict him." If the justice omits his duty, he forfeits £5 and the constable 40s. And the act is to be read in all parish churches and public chapels the Sunday after every quarter-day, on pain of £5, to be levied by warrant from any justice." Besides this punishment for taking God's name in vain in common discourse, it is enacted by statute 3 Jac. I., c. 21, that if in any stage play, interlude, or show, the name of the Holy Trinity, or any of the persons therein, be jestingly or profanely used, the offender shall forfeit £10, one moiety to the king, and the other to the informer.* VI. Witch craft, conjuration, en or sorcery. VI. A sixth species of offenses against God and religion, of which our ancient books are full, is a crime of which one knows chantment, not well what account to give. I mean the offense of witchcraft, conjuration, enchantment, or sorcery. To deny the possibility, nay, actual existence of witchcraft and sorcery, is at once flatly to contradict the revealed word of God, in various passages both of the Old and New Testament; and the thing itself is a truth to which every nation in the world hath in its turn borne testimony, either by examples seemingly well attested, or by prohibitory laws; which at least suppose the possibility of commerce with evil spirits. The civil law punishes with death not only the sorcerers themselves, but also those who consult them,i imitating in the former the express law of i Col., 1. 9, t. 18. (15) The conviction must be within Persons belonging to his majesty's navy, eight days after the offense, s. 12. Each if guilty of profane cursing and swearoath or curse being a distinct complete ing, are liable to suffer such punishment offense, there can be no question, I con- as a court-martial shall think proper to ceive, but a person may incur any num- inflict. 22 G. II., c. 33.—[CHRISTIAN.] ber of penalties in one day, though Dr. Burn doubts whether any number of oaths or curses in one day amounts to more than one offense. 3 Burn, 325. (16) By the 4 Geo. IV., c. 31, this latter provision is repealed. And see now the stat. 1 Vict., c. 22. * In New York, profane cursing and swearing is made punishable by statute. (1 R. S., 673.) |